Exhibit 10.78
SETTLEMENT AGREEMENT
SETTLEMENT AGREEMENT (the "Agreement") dated May __, 1999 by and among THE
WELLCARE MANAGEMENT GROUP, INC., a New York corporation ("WCMG"), WELLCARE OF
NEW YORK, INC., a New York corporation ("WCNY" and together with WCMG,
"WellCare"), and XXXXX X. XXXXX ("Xx. Xxxxx") (WellCare and Xx. Xxxxx
collectively, the "WellCare Parties"), and the Provider or Provider group
specified on the signature page of this Agreement ("Provider") and THE MEDICAL
SOCIETY OF THE STATE OF NEW YORK ("MSSNY") (WCMG, WCNY, Xx. Xxxxx, Provider and
MSSNY being referred to individually as a "Party" and collectively as the
"Parties").
WHEREAS, WCMG has signed a letter of intent with Xx. Xxxxx, for a
transaction that would, among other things, encompass an equity investment in
WellCare by Xx. Xxxxx or an affiliate (the "Xxxxx Transaction");
WHEREAS, the Board of Directors of WCNY, a New York certified health
maintenance organization ("HMO"), has approved the sale of its New York State
based commercial business to Group Health Incorporated (the "GHI Transaction");
WHEREAS, WellCare and Xx. Xxxxx contemplate that all or a portion of the
equity investment provided through the Xxxxx Transaction and all of the funds
obtained through the GHI Transaction will be pooled with certain current assets
of WCNY and made available to satisfy claims by providers for services rendered
through April 30, 1999;
WHEREAS, WCNY has agreed to a consent to rehabilitation in which the State
of New York has the right to commence court proceedings and have an order
entered into that would give the State of New York the right to assume the
operation of WCNY;
WHEREAS, Healthcare Association of New York ("HANYS") and Northern
Metropolitan Hospital Association ("NORMET") have entered into a similar
settlement agreement for the purpose of settling any and all disputes, claims
and controversies between WellCare and the member hospital which is also a
signatory to the agreement, relating to the payment for services provided by
member hospitals prior to May 1, 1999 to HMO members of WCNY, in order to assist
their respective member hospitals in the resolution of such member hospitals'
claims against WellCare, with the express understanding that neither HANYS nor
NORMET has authority to bind its member hospitals and that each such member
hospital shall be required to separately execute the agreement if it is to be
binding on such member hospital;
WHEREAS, MSSNY has entered into this Agreement in order to assist their
members in the resolution of such member's claims against WellCare, with the
express understanding that MSSNY does not have authority to bind its members and
each member-Provider shall be required to separately execute this Agreement if
its it be binding on such member-Provider;
WHEREAS, the WellCare Parties and Provider desire, and are mutually
willing, to enter into this Agreement for the purpose of settling any and all
disputes, claims and controversies, as described further below, between WellCare
and the Provider, relating to the payment for services provided by the Provider
prior to May 1, 1999 to HMO members of WCNY; and
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and in consideration of the mutual
agreements herein, the Parties agree as follows:
1. Regulatory Approvals
This Agreement and the terms and conditions contained herein are subject to
the approval of the New York State Insurance Department ("SID") and the New York
State Department of Health ("DOH"). As soon as practicable, the Parties shall
jointly seek approval of this Agreement from SID and DOH, and in accordance with
Section 10(f), the Parties agree to execute or cause their counsel to execute
any additional documents and take any further action which may be reasonably
required in order to facilitate such regulatory approval.
2. Conditions to Effectiveness
This Agreement shall become effective (the "Effective Date") only upon the
satisfaction of each and all of the following conditions:
(a) Regulatory approvals as set forth in Section 1, no later than July
15, 1999;
(b) The deposit of a minimum of Ten Million Dollars ($10,000,000) in
the Provider Pool (as defined below) (the "Initial Funding Date"), no later than
July 15, 1999; and
(c) Agreement by WellCare and Provider as to the amount of its Settled
Claims (defined below) within thirty (30) days following the date of this
Agreement;
provided however that Sections 1, 4, 8, 9 and 10 hereof shall become effective
immediately. WellCare shall provide Provider with written notice of the
Effective Date of this Agreement no later than ten (10) business days after all
of the foregoing conditions have been satisfied.
3. Settled Claims
"Settled Claims" means the dollar amount of all claims against WellCare by
a health care provider that has signed this Agreement or an agreement with
substantially similar terms and conditions, for services rendered to HMO members
of WCNY in any product line prior to May 1, 1999 and received by WellCare within
thirty (30) days following the date hereof, determined as follows: (i) total
adjudicated claims as determined by WellCare on or before April 30, 1999,
namely, claims received by WellCare and approved as properly payable, and (ii)
all other claims (comprised of pended claims and disputed claims) submitted in
good faith and adjudicated in good faith by WellCare within thirty (30) days
following the date hereof at fifty percent (50%) of a Provider's or other
provider's submitted charges. For purposes of clarification, "Settled Claims"
shall not include any claims for payment that a health care provider may have
against independent practice associations, including but not limited to those
owned by Primergy, Inc., and other third parties (such as Merit Behavioral
Services, Access Managed Healthcare, Block Vision, New York Medical Imaging,
PharmaCare and Laboratory Corporation of America) that have contracted with
WellCare to provide or to arrange for the provision of certain health care
services (e.g., physician services or specialty "carve-out" services, such as
mental health services, chiropractic services, laboratory services or pharmacy
services) to HMO members of WCNY.
4. Exchange of Information and Confidentiality; Litigation Stay
(a) In connection with the execution of this Agreement, WellCare has
provided Provider, a provider specific summary of amounts owed for payable and
pended claims for services provided by provider to HMO members of WCNY prior to
May 1, 1999 that have not been paid according to WellCare's records.
(b) Provider agrees to confirm the amounts contained in said list of
all claims for services provided prior to May 1, 1999 and to provide WellCare
with Provider's statement of unpaid (including disputed) WellCare claims based
on its, his or her records as soon as practicable. If there is any disagreement
as to the Settled Claims amount the Parties shall, in good faith, attempt to
resolve any such disagreements within thirty (30) days following the date
hereof.
(c) Upon the determination of and agreement by WellCare and the
Provider as to the Settled Claims for Provider, WellCare shall provide Provider
with a statement of its, his or her Settled Claims and the minimum amount to
which Provider is entitled to payment from the Provider Pool, i.e., thirty
percent (30%) of the Settled Claims. Upon Provider's acceptance thereof, such
statement shall be annexed as Exhibit A to this Agreement.
(d) [THIS SECTION INTENTIONALLY OMITTED]
(e) The Parties each agree that they will not commence, institute or
prosecute any action or other adversary proceeding in any court of law or
equity, arbitration tribunal, or administrative forum ("Litigation") against any
other Party on or after the date hereof relating to or concerning the subject
matter of this Agreement, except (i) following termination of this Agreement as
provided in Section 9 or (ii) following July 15, 1999 if this Agreement shall
not have become effective by such date for failure to satisfy the conditions set
forth in Section 2 or (iii) if a case is commenced in respect to WellCare or any
of its subsidiaries or affiliates under Title 11 of the United States Code
(Bankruptcy), or a trustee, receiver or conservator or the like is appointed
under Article 74 of the New York Insurance Law or any similar law, or by SID, or
any other regulatory body, any Party may appear and participate in any such case
or proceeding. The Parties further agree to take whatever steps are necessary to
stay any Litigation during theperiod between the date hereof and the Effective
Date and thereafter take whatever steps are necessary to discontinue any such
Litigation with prejudice.
5. Establishment of Settlement Fund
(a) A pool of funds (the "Provider Pool") shall be established solely
to pay Settled Claims of the Providers and other providers which have entered
into settlement agreements containing terms similar to those contained in this
Agreement. The Provider Pool shall be established in a segregated cash
collateral account prior to the Effective Date at a bank mutually acceptable to
WellCare, Garfunkel Wild & Xxxxxx, P.C., as counsel to HANYS and NORMET, and
MSSNY, which approval shall not be unreasonably withheld, which bank shall have
had no prior dealings with WellCare. The Provider Pool shall not be disbursed
except in accordance with this Agreement (or other similar settlement
agreement). The Provider Pool account shall contain irrevocable instructions
concerning deposits and withdrawals from the Provider Pool, which shall be
agreed to by Garfunkel, Wild & Xxxxxx, P.C., as counsel to HANYS and NORMET, and
WellCare, subject to notification of MSSNY, prior to the Effective Date, and
which may be modified only with the prior written approval of both WellCare and
Garfunkel, Wild & Xxxxxx, P.C., as counsel to HANYS and NORMET, subject to
notification of MSSNY, or at the direction of SID. The Parties recognize and
agree that deposits into and payments from the Provider Pool may be subject to
audit or review by SID and other regulatory agencies having jurisdiction over
WellCare. The Parties understand that HANYS and/or NORMET or their agents or
representatives, shall have the right to audit or review the Provider Pool, and
the results of any such audit shall be distributed to all Parties. The Parties
agree to cooperate with each other to the extent reasonably necessary to carry
out the provisions of this Section 5(a).
(b) The Provider Pool shall have an initial balance of not less than
Ten Million Dollars ($10,000,000) by the Effective Date and shall be comprised
of proceeds from the Xxxxx Transaction and/or GHI Transaction. In addition, the
Provider Pool shall be supplemented by an amount equal to 80% of all proceeds
from accounts receivables of WCNY which were or should have been recorded in
accordance with generally accepted accounting principles (GAAP) as of April 30,
1999 (the "Accounts Receivable") to the extent such proceeds are collected by
WellCare during the period commencing on May 1, 1999 and ending on the date that
the Provider Pool is no longer in effect. If the amounts deposited in the
Provider Pool shall in the aggregate exceed Ten Million Dollars ($10,000,000)
(the amount so exceeding Ten Million Dollars ($10,000,000) being the "Excess"),
the Excess may be withdrawn from the Provider Pool and retained by WellCare for
purposes of maintaining its statutory reserves in accordance with applicable
law, but in no event shall WellCare be entitled to withdraw from the Provider
Pool and retain more than Two Million Five Hundred Thousand Dollars ($2,500,000)
for such purpose. Any Excess beyond that amount required for statutory reserves
shall be retained in the Provider Pool.
(c) In the event that the amount equal to thirty percent (30%) of the
aggregate Settled Claims for all providers (excluding the five percent (5%)
payments to providers described in Section 6(b)), is greater than Ten Million
Dollars ($10,000,000), but does not exceed Twelve Million Dollars ($12,000,000),
subject to Section 5(b), WellCare shall deposit additional funds into the
Provider Pool to make up the shortfall, to the extent WellCare has sufficient
funds and requisite regulatory authority to so act. In the event WellCare lacks
sufficient funds and/or requisite regulatory authority to deposit such
additional funds in the Provider Pool, Xx. Xxxxx will provide funds in such
amount necessary to pay the thirty percent (30%) of the aggregate Settled Claims
for all providers, not to exceed a total Provider Pool balance of Twelve Million
Dollars ($12,000,000).
(d) In the event the amount equal to thirty percent (30%) of the
aggregate Settled Claims for all providers (excluding the five percent (5%)
payments to providers described in Section 6(b)) is greater than Twelve Million
Dollars ($12,000,000), then the amount required to be deposited into the
Provider Pool in excess of Twelve Million Dollars ($12,000,000) shall be paid by
WellCare; provided, however, that WellCare will be permitted to reduce pro rata
the amount of the Provider's remaining three (3) payments of five percent (5%)
as set forth in Section 6(b) below (and all other providers with Settled Claims
who may receive a similar payment) to the extent that WellCare's payments exceed
Twelve Million Dollars ($12,000,000), and provided, however, in no case shall
Provider receive less than thirty percent (30%) of its Settled Claims under this
Agreement.
(e) In the event a balance remains in the Provider Pool as of six (6)
months after the Effective Date, then such balance will be distributed pro rata
to the Provider and other providers which have entered into agreements to settle
their Settled Claims, based upon the amounts of their respective Settled Claims.
(f) Each health care provider that has Settled Claims shall have a
security interest for the benefit of all health care providers with Settled
Claims, which shall be a first priority lien with respect to the proceeds due to
WellCare from the Xxxxx Transaction and/or GHI Transaction and all amounts in
the Provider Pool, and a second priority lien on and security interest in the
Accounts Receivable, except to the extent there is no other lien on the Accounts
Receivable as of the date of this Agreement, the security interest shall be a
first priority lien. It shall be the responsibility of such providers to timely
and properly prepare and deliver the necessary documents for signature by all
necessary parties, and thereafter cause the appropriate filings to be made to
perfect such security interests, including, without limitation, a financing
statement in the form approved by the Parties. The Parties shall cooperate with
each other in the preparation of any and all documents necessary to give effect
to such security interest and such other terms and obligations hereunder.
(g) Nothing contained herein shall prohibit or restrict WellCare from
settling or paying claims of any nature from sources of funds exclusive of those
deposited (or required to be deposited) in the Provider Pool.
6. Payment by WellCare of Settled Claims
(a) WellCare will pay Provider thirty percent (30%) of the Provider's
Settled Claims within ten (10) days of the Effective Date. If, however, thirty
percent (30%) of the aggregate Settled Claims for all providers exceeds the
funds then in the Provider Pool, then WellCare will pay the Provider and all
other providers with Settled Claims on a pro rata basis from the funds then in
the Provider Pool and thereafter pay the Provider and all other providers with
Settled Claims on a pro rata basis every thirty days (30) thereafter for the
period in which the Provider Pool is in effect. WellCare represents to Provider
that providers with Settled Claims shall all receive payment from the Provider
Pool based upon the same proportion of their Settled Claims. Notwithstanding the
foregoing, in no case shall Provider receive less than thirty percent (30%) of
the amount of its Settled Claims within six (6) months of the Effective Date and
Provider shall continue to have the right to xxxx WCNY members for all
applicable copayments, coinsurance and non-covered services relating to Settled
Claims to the extent permitted under the applicable health plan and provider
agreement, and WellCare shall provide Provider with necessary documentation to
xxxx the member accordingly. Notwithstanding anything to the contrary contained
herein, WellCare shall have the right to recoup, without any right of set-off,
any amounts paid under this Agreement to a Provider if the Provider shall have
failed to be a participating provider in good standing with WellCare at any time
during the period commencing on the date hereof and ending on the date six
months following the date hereof, and in such case of recoupment by WellCare,
this Agreement shall be null and void for all purposes. The foregoing condition
of a provider agreement shall not be applicable on or after the Effective Date
if Provider has terminated the provider agreement for cause or WellCare has
terminated such provider agreement without cause.
(b) WellCare will pay Provider an amount equal to five percent (5%) of
such Provider's Settled Claims on each of February 1, 2000, February 1, 2001 and
February 1, 2002, provided, however, Provider is at that time a participating
provider in good standing with WellCare. The foregoing condition of a provider
agreement shall not be applicable if Provider has terminated the provider
agreement for cause or WellCare has terminated such provider agreement without
cause. The Parties understand and acknowledge that no such payment under this
Section 6(b) shall be made from the Provider Pool.
(c) Subject to regulatory approvals and in accordance with applicable
law, including the federal securities laws, the Provider may elect to receive
WCMG common stock in lieu of one or more of the annual payments set forth in
Section 6(b). The price at which the WCMG common stock shall be valued shall be
the greater of the price of such common stock for the twenty (20) trading days
ending on February 2nd of the calendar year immediately preceding the applicable
payment date or $1.00 per share. Each Provider receiving such WCMG common stock
shall agree to transfer restrictions on such shares for a mutually agreed upon
period after issuance, but not to exceed six (6) months. In the event the
Provider elects to receive WCMG common stock in lieu of a cash payment, the
Parties agree to cooperate and use their best efforts to reach agreement
regarding the terms and conditions of such receipt of WCMG securities and to
accomplish the foregoing.
7. Mutual Releases
(a) Provider together with its subsidiaries, affiliates, officers,
directors, shareholders, employees, agents, attorneys, representatives,
successors and assigns ("Provider Releasor"), hereby releases and discharges the
WellCare Parties, together with their respective subsidiaries, affiliates,
directors, shareholders, employees, agents, attorneys, representatives,
successors and assigns ("WellCare Releasees") from (i) all indebtedness and
other financial obligations arising from the provision of services by each
Provider to members of WCNY in any product line on or before April 30, 1999,
including any prospective adjustments pursuant to the New York Health Care
Reform Act ("NYCRA") for services rendered prior to May 1, 1999, and (ii) all
actions, causes of action, suits, debts, dues, sums of money, accounts,
reckonings, bonds, bills, specialties, covenants, contracts, controversies,
agreements, promises, variances, trespasses, rights to contribution, damages,
judgments, extends, executions, claims, and demands whatsoever, in law,
admiralty or equity, which each Provider Releasor ever had, now has or hereafter
can, shall or may have against the WellCare Releasees, for upon, or by reason of
any matter, cause or things whatsoever relating to the matters referred to in
(a)(i) above from the beginning of the world to the day of the date of this
Agreement or arising hereafter as a result of or in connection with the matters
referred to in (a)(i) above. The foregoing release expressly excludes any claims
for payment that Provider may have against independent practice associations,
including but not limited to those owned by Primergy, Inc., and other third
parties (such as Merit Behavioral Services, Access Managed Healthcare, Block
Vision, New York Medical Imaging, PharmaCare and Laboratory Corporation of
America) that have contracted with WellCare to provide or to arrange for the
provision of certain health care services (e.g., physician services or specialty
"carve-out" services, such as mental health services, chiropractic services,
laboratory services or pharmacy services) to HMO members of WCNY and expressly
excludes any action, suits, claims or demands arising from medical malpractice
or negligence.
(b) Each Provider Releasor represents to the WellCare Releasees that
none of the liabilities, claims, causes of actions, costs or demands herein
released has been assigned to any person or entity.
(c) Each Provider Releasor acknowledges that it may hereafter discover
facts different from, or in addition to, those that it now believes to be true,
with respect to all or any of the liabilities, claims, causes or action, costs
or demands herein released but nevertheless agrees that the releases set forth
herein shall be and remain effective in all respects, notwithstanding the
discovery of such different or additional facts.
(d) Each Provider Releasor is forever barred and enjoined from
commencing, instituting or prosecuting any action or other adversary proceeding
in any court of law or equity, arbitration tribunal, or administrative forum,
directly or representatively, against the WellCare Releasees with respect to
any, some or all of the Settled Claims; provided however, each Provider Releasor
and the WellCare Releasees retain all rights and remedies to enforce the terms
of this Agreement.
(e) The WellCare Parties together with their respective subsidiaries,
affiliates, officers, directors, shareholders, employees, agents, attorneys,
representatives, successors and assigns ("WellCare Releasors") hereby release
and discharge Provider and its subsidiaries, affiliates, directors,
shareholders, employees, agents, attorneys, representatives, successors and
assigns ("Provider Releasee") from (i) all indebtedness and other financial
obligations arising from the provision of services by Provider to members of
WCNY in any product line on or before April 30, 1999, including any prospective
adjustments pursuant to the NYCRA for services rendered prior to May 1, 1999,
and (ii) all actions, causes of action, suits, debts, dues, sums of money,
accounts, reckonings, bonds, bills, specialties, covenants, contracts,
controversies, agreements, promises, variances, trespasses, rights to
contribution, damages, judgments, extends, executions, claims, and demands
whatsoever, in law, admiralty or equity, which the WellCare Releasors ever had,
now have or hereafter can, shall or may have against each Provider Releasee, for
upon, or by reason of any matter, cause or things whatsoever relating to the
matters referred to in (e)(i) above from the beginning of the world to the day
of the date of this Agreement or arising hereafter as a result of or in
connection with the matters referred to in (e)(i) above. The foregoing release
expressly excludes any claims for payment that WellCare may have against
independent practice associations, including but not limited to those owned by
Primergy, Inc., and other third parties (such as Merit Behavioral Services,
Access Managed Healthcare, Block Vision, New York Medical Imaging, PharmaCare
and Laboratory Corporation of America) that have contracted with WellCare to
provide or to arrange for the provision of certain health care services (e.g.,
physician services or specialty "carve-out" services, such as mental health
services, chiropractic services, laboratory services or pharmacy services) to
HMO members of WCNY and expressly excludes any action, suits, claims or demands
arising from medical malpractice or negligence.
(f) The WellCare Releasors represent to each Provider Releasee that
none of the liabilities, claims, causes of actions, costs or demands herein
released has been assigned to any person or entity.
(g) The WellCare Releasors acknowledge that they may hereafter
discover facts different from, or in addition to, those that they now believe to
be true, with respect to all or any of the liabilities, claims, causes or
action, costs or demands herein released but nevertheless agree that the
releases set forth herein shall be and remain effective in all respects,
notwithstanding the discovery of such different or additional facts.
(h) The WellCare Releasors are forever barred and enjoined from
commencing, instituting or prosecuting any action or other adversary proceeding
in any court of law or equity, arbitration tribunal, or administrative forum,
directly or representatively, against any Provider Releasee with respect to any,
some or all of Settled Claims; provided however, the WellCare Releasors and each
Provider Releasee retain all rights and remedies to enforce the terms of this
Agreement.
(i) Nothing contained herein shall be deemed to create any rights or
benefits, or constitutes a release of any kind whatsoever, for any non-Party.
8. Representations and Warranties of the Parties
(a) WellCare represents and warrants that the execution of this
Agreement and the consummation by it of the transactions contemplated hereby
have been duly authorized by all necessary corporate action and will not violate
the provisions of its certificate of incorporation or by-laws or of any
agreement, law, rule, regulation or other commitment to which it is a party of
and by which it is bound.
(b) Provider represents and warrants that, to the extent applicable,
the execution of this Agreement and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
and will not violate the provisions of its certificate of incorporation or
by-laws or of any agreement, law, rule, regulation or other commitment to which
it is a party of and by which it is bound.
9. Termination of Settlement
(a) The Parties agree that this Agreement is binding and irrevocable
(unless terminated pursuant to this Section 9 or as provided in Sections 1 and 2
herein) regardless of future events or changed circumstances of WellCare or any
of its subsidiaries or affiliates, and the Parties agree that the agreements and
covenants contained herein are fair, reasonable and adequate, and WellCare
believes that the agreements and covenants contained herein are in the best
interests of WellCare and its subsidiaries, affiliates, shareholders and
creditors.
(b) If this Agreement shall not be approved by SID and DOH then in
either of these events, this Agreement shall become null and void for all
purposes and all negotiations, transactions and proceedings connected with it
(i) shall be without prejudice to the rights of any Party, (ii) shall not be
deemed or construed as evidence or an admission or a concession by any Party of
any fact, matter or thing; and (iii) shall not be admissible in evidence or used
in any action or proceeding.
(c) If WellCare is unable to fund the Provider Pool with an initial
balance of not less than Ten Million Dollars ($10,000,000) for any reason,
including but not limited to the failure to consummate the Xxxxx Transaction
and/or the failure to consummate the GHI Transaction, this Agreement shall
become null and void for all purposes and all negotiations, transactions and
proceedings connected with it (i) shall be without prejudice to the rights of
any party, (ii) shall not be deemed or construed as evidence or an admission or
a concession by any party of any fact, matter or thing; and (iii) shall not be
admissible in evidence or used in any action or proceeding.
(d) If a case is commenced in respect to WellCare or any of its
subsidiaries or affiliates under Title 11 of the United States Code
(Bankruptcy), or a trustee, receiver or conservator, or the like is appointed
under Article 74 of the New York Insurance Law or any similar law, or by SID, or
any other regulatory body, and in the event of the entry of a final order of a
court of competent jurisdiction determining the transfer of money to the
Provider Pool and/or to the Provider in payment of a Settled Claim, or any
portion thereof, on behalf of WellCare to be a preference, voidable transfer or
fraudulent transfer or similar transaction and any portion thereof is required
to be returned, then WellCare may move a court of competent jurisdiction to
vacate and set aside this Agreement and the releases contained herein, which
Agreement and releases shall be null and void, and the Parties shall be returned
to their respective positions as of April 30, 1999 and any payments made to the
Provider shall be returned to WellCare. In any such event (or otherwise under
any such bankruptcy or similar proceeding), the debt owed by WellCare or its
estate to the Provider shall not be valued on the basis of payments made
pursuant to sections 6(a) and (b) hereunder.
(e) Upon a default by WellCare in respect of any payment coming due
hereunder ("Default"), and unless such Default shall be cured within forty (40)
days after written notice thereof by fax and by certified mail, return receipt
requested, sent to:
President and Chief Executive Officer
WellCare of New York, Inc.
XX Xxx 0000
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxx X. Xxxxxx, Esq.
Xxxxxxx Xxxxxx & Green, P.C.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and a copy to:
Xxxxxx Xxxxx, Esq.
Xxxxx, Xxxxx & X'Xxxxxx, PA
0000 Xxxxx Xxx Xxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Provider shall be entitled, upon not less than ten (10) days' notice to DOH, SID
and WellCare that Wellcare is in Default under the terms of this Agreement, to
seek appropriate judicial relief for payments due under this Agreement.
10. Miscellaneous
(a) This Agreement is a compromise disposing of claims of each
Provider, some or all of which may be controverted. This Agreement and all
negotiations and statements in connection herewith shall not be in any event
construed as or deemed to be evidence or an admission or concession on the part
of any Party of any liability whatever, and shall not be offered or received in
evidence in any action or proceeding in any court or other tribunal or used in
any way as an admission, concession or evidence of any liability by any party.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to a contracts executed and
performed in such State, without giving effect to the conflicts of laws
principles thereof.
(c) The Parties to this Agreement hereby consent to the jurisdiction
of the courts of the State of New York and the federal courts setting in New
York over them in any action to enforce this Agreement or any provision thereof.
(d) Each of the Parties has received independent legal advice from its
attorneys with respect to the advisability of entering into this Agreement and
the releases contained herein. Each of the Parties has made such investigation
of the facts pertaining to this Agreement and the releases herein and all other
matters pertaining thereto as it deems necessary.
(e) Each of the Parties to this Agreement acknowledges that this
Agreement is reached solely in relation to the subject matter herein and no
agreement reached herein shall constitute an admission or evidence in any other
matter among the parties to this Agreement or in any other matter or proceeding
in which any of the parties may be or become involved.
(f) Each of the Parties agrees to execute or cause their counsel to
execute any additional documents and take any further action which reasonably
may be required in order to consummate this Agreement, or otherwise fulfill the
obligations of the Parties hereunder. Each party is to bear its own costs and
attorney's fees incurred in connection with any such additional action.
(g) This Agreement represents and expresses the entire agreement
between the Parties with respect to the subject matter hereof and may not be
modified or amended except in a writing signed by WellCare and the affected
Provider, so long as such modification or amendment does not adversely effect
other providers with respect to the payment of Settled Claims from the Provider
Pool or for payments similar to those set forth in Section 6(b).
(h) This Agreement and the releases contained herein supersede any
prior agreement or release with respect to the subject matter hereof.
(i) This Agreement shall be binding on and inure to the benefit of the
Parties and their respective successors, administrators or assigns, and upon any
corporation or other entity into or with which any Party may merge, consolidate
or reorganize. This Agreement and the releases contained herein is limited to
the Parties, the Provider Releasors, the Provider Releasees, the Wellcare
Releasors and the Wellcare Releasees and any other third party beneficiary of
this Agreement and the releases contained herein is expressly excluded.
(j) The headings used in this Agreement have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
(k) This Agreement may be executed in counterparts, each of which
shall be deemed an original instrument, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above written.
PROVIDER THE WELLCARE MANAGEMENT
GROUP, INC.
By:___________________________ By: /s/ Xxxxx Xxxxxx
Title:________________________ -----------------------------
Address:______________________ Xxxxx Xxxxxx
______________________ Acting Chief Executive Xxxxxxx
Xxxx Xxxx/Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
XXXXXX XXXXX, ESQ. WELLCARE OF NEW YORK, INC.
By: /s/ Xxxxxx Xxxxx, Esq. By: /s/ Xxxx Xxx Xxxxxxxx-Xxxxxx
------------------------- -----------------------------
Xxxxxx Xxxxx, Esq. Xxxx Xxx Xxxxxxxx-Xxxxxx
Attorney for Xxxxx X. Xxxxx, M.D., Chief Executive Officer
F.A.C.C. Park Xxxx/Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
MEDICAL SOCIETY OF THE STATE
OF NEW YORK
By: /s/ Xxxxxx X. Xxx, Esq.
-------------------------
Xxxxxx X. Xxx, Esq.
General Counsel
